The ‘scourge’ of unrepresented litigants

Illustration: Peter Mitchell

By
Sandra Shutt

07 Jan 2013

Share

Julie Macfarlane says the centuries-old legal cliché about people who represent themselves in court having fools for clients makes perfect sense. But the reality is record numbers of Canadians with legal cases — the vast majority when family law is involved — no longer turn to lawyers to represent them in civil matters. “I am blown away by the numbers of self-represented litigants in our courts today,” says Macfarlane, a University of Windsor law professor who is currently conducting a national research project on the subject. “I think it’s more fitting now to say that it’s the inmates who are running the asylum.”

That’s why she, like many lawyers who are aware of and interested in the self-rep phenomenon, welcomed the public spotlight a recent Alberta ruling shone on the more lunatic fringe of a fast-growing category of litigants in the Canadian court system.

In the 155-page decision he rendered last September in a matrimonial dispute, Court of Queen’s Bench Associate Chief Justice John D. Rooke issued a call to arms against self-represented litigants he dubs “Organized Pseudolegal Commercial Argument” litigants — or OPCAs. “This Court has developed a new awareness and understanding of a category of vexatious litigant,” Rooke writes near the outset of Meads v. Meads, which notably begins with three famous quotations from Thomas Hobbes’ Leviathan about the fundamental roles of liberty and law in society.

Despite their lack of homogeneity, the judge lumps OPCAs “by their own admission or by descriptions given by others” into six main groups:• De-taxers, who focus on avoiding tax liability;• Freemen or Freemen-on-the-Land, who espouse anti-government rhetoric using commercial contract-sounding words and phrases;• Sovereign Men or Sovereign Citizens, who focus on state oppression and physical violence;• Church of the Ecumenical Redemption International (or CERI), a “pot church” based in Edmonton;• Moorish Law, which involve mostly black Muslim men who claim to be governed by religious beliefs that trump the authority of the courts; and• “Other labels,” namely litigants who do not identify with any group but use similar filibustering tactics and “magic hat” arguments that absolve them from legal obligations.

The judge also found, while OPCA litigants are often conspiracy theorists, they usually have no specified targets. “When reduced to their conceptual core,” writes Rooke, “most OPCA concepts are contemptibly stupid.”

He expressed hope the term OPCA will help to “functionally define [vexatious litigants] collectively for what they literally are. These persons employ a collection of techniques and arguments promoted and sold by ‘gurus’ to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” The justice also dismissed the so-called gurus behind the erratic concepts voiced by OPCAs as “nothing more than conmen” and “parasites.”

Michele J. Reeves, a veteran litigation lawyer in Edmonton and counsel for Crystal Lynne Meads, says she does “a ton” of family law, and “another ton” of civil cases. Was Meads her first exposure to vexatious self-reps in a courtroom? “Hell no,” she says. “I’m old and it seems like it’s always been going on since I first entered a courtroom. Vexatious litigants are not the norm, but they are a common problem and feature in family law — and it’s not just self-reps.”

She says they are easiest to spot in morning chambers, where they derail proceedings over the need to produce documentation. “They come in and start their spiel, ‘That’s my commercial name, but it’s not me. I’m a sentient man, yadda, yadda, yadda.’ Sometimes they even bring in the Magna Carta. The poor judges sit there like the proverbial deer in the headlights,” she says. “You could never charge your client for all the time and trouble it costs to deal with all their shenanigans. They’d go broke. As a lawyer, you just have to have the patience to slug through it to the end. I like to tell people that dealing with vexatious litigants is like eating an elephant: you have to do it slowly, one bite at a time.”

In this case, she says she quickly realized Dennis Meads was “going to take us to Crazytown. And he wasn’t even that bad. But once it became clear that he was going to be difficult, I did what I always do in those cases, I brought in a motion for case management.” Normally, she adds, the judge will issue a decision on the matter. But in this case Rooke called the parties to open court. “That was interesting. I knew something was up.” She said it took only a few questions from Rooke for Dennis Meades “to start doing his thing.”

She says the judge listened patiently to all of his arguments, then declared he would render a written judgement — another rarity in a case like this, notes Reeves. “When you read his ruling it’s obvious that Justice Rooke had an agenda. He was waiting for a case like this.”

Relying on results of research he conducted, Rooke concluded a decade of reported cases, many of which he refers to in his ruling, have failed to prove a single concept advanced by OPCA litigants. “What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies,” he wrote.

He provides a painstaking, point-by-point analysis of the “OPCA schemes, concepts, and arguments” he says were advanced by Dennis Meads, who he says “appears to be a sophisticated and educated person (but) is also an OPCA litigant.” For example, at his initial appearance in the child custody and spousal support case, Meads affirmed he was “a child of the almighty God Jehovah; a living, flesh and blood sentient-man,” not a child of the state.

Documents he filed with the court were also highlighted with multiple colours of ink, featured blue thumbprints in lieu of signatures, and contained the flamboyant and convoluted language the judge says is typical of OPCAs. The respondent demanded, for example, that his wife cease and desist from “an Enticement in Slavery,” warning that she risked being subject to “full commercial liability and unlimited civil liability.” He also claimed a right to address the custody and support issues at hand according to his own interpretations of various sources, including the Bible, American trade laws, and principles of what he called “universal law.”

By categorically detailing and refuting each of Dennis Meads’ actions, Rooke says he hoped to “uncover, expose, collate, and publish the tactics employed by the OPCA community as part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada.”

He also expressed hope that his ruling will help self-represented litigants “who have been taken in or duped by gurus, to realize that these practices are entirely ineffective; to empower opposing parties and their counsel to take action; and as a warning to gurus that the Court will not tolerate their misconduct.”

Rooke recommends several procedural reforms to help the court system deal more effectively with OPCAs; suggesting court staff, for example, refuse to accept non-conform submitted documents and to categorize those materials “as irrelevant except for the purpose of costs, vexatious litigation and litigant status, and contempt and criminal sanction.” He suggests his fellow judges strike down “irrelevant submissions and pleadings” from litigants they consider to be vexatious and abusive, and award punitive damages and higher settlements in those cases.

“Dealing with an OPCA litigant is difficult and frustrating,” concludes Rooke. “The fact that they are almost always self-represented (only) adds to the challenge. Timely and cost-effective resolution of these disputes requires that an action be pared down to its legitimate substance.”

Not surprisingly, the judge’s ruling attracted national media coverage and set the legal biz abuzz. “The decision sends a stern warning to OPCA litigants that the courts are on to their game,” Margaret L. Waddell, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto, wrote in her canadianlawyermag.com column. “I take my hat off to Justice Rooke (and his) strong position to curb these vexatious litigants and bring them to heel.”

Vancouver-based family law lawyer and blogger John-Paul Boyd agrees. “This decision is remarkable and should be required reading for judges, lawyers, court administrators and clerks across the country,” he wrote a few days after the ruling. Boyd calls Rooke’s ruling “a treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant [who] has been clogging up Canada’s courts with contrived, pseudo-legal arguments and irrational, histrionic demands for a number of years.”

Boyd goes on to suggest ways lawyers could also help deal with the situation. They include making applications to chief justices for orders appointing case management judges early on in cases where the litigant’s claim or defence raises questions of legitimacy, and “carefully scrutinize” the background and motivations of persons seeking approval to appear as a representative or agent — and object if the person is going to exacerbate the situation. And “do not waste your client’s money replying to nonsensical pleading or applications in the same voluminous manner as the litigant’s material,” suggests Boyle. “Consider applying for directions.”

Reeves says she is happy about the attention Meads has drawn. “There is no cohesive approach for dealing with these guys who clog the system and go back to court repeatedly. It’s not as hard on older lawyers like myself who have experience dealing with them. I give one or two shots across the bow, then apply for case management. It’s toughest on junior lawyers who bang their heads on the table after coming back from court for the fifth time. The problem in family court is that there is nothing to shut vexatious litigants down.”

Though the numbers of OPCAs — to use Rooke’s newly coined acronym — is unknown, lawyers working on the front lines say the problem is widespread. “I think the fact that the judge even made this ruling suggests how big a problem it is,” says Toronto lawyer Omar Ha-Redeye. “This is a hot issue. Family law is in crisis in Canada.” According to Ha-Redeye, who recently spoke on a panel about self-represented litigants in family law and cost-sensitivity (notably unbundled services), self-representation is soaring across the country. He says two factors are driving people to self-representation: frustration with the cost and access to the legal system, and a lack of legal information that people can access. “Many of them think self-rep is easy,” he says. “But they discover too late that the reality is really quite different.”

Macfarlane is hearing first-hand about the problems self-represented litigants face. Over the past year, she has conducted hour-long interviews with more than 250 of them in Ontario, British Columbia, and Alberta — provinces in which the law foundations are helping to fund her study. Her findings, which she plans to present in March to the chief justices task force and at other meetings with legal system stakeholders, include both ground-breaking data on the number of self-represented litigants, as well as on the profile of people who are going that route before the courts.

Notably, Macfarlane has found as many as 80 per cent of family court cases in Canada involve self-represented litigants. “The numbers are absolutely astonishing,” she says. “I’ve had judges writing to me telling me the numbers can’t be right. But they are because they are coming from their own justice departments.”

Macfarlane says those numbers follow a North American-wide trend. She notes only one per cent of litigants in family courts in California in 1971 were self-reps. That number jumped to 46 per cent in 1993 and to 77 per cent in 2000. “It’s likely over 80 per cent now,” she adds. “But it’s almost certainly the same here because we’ve been trending in the same direction.”

Macfarlane says her study will, for the first time in Canada, put a human face on those fighting their own battles in court. “They are mostly low-income earners who have been lulled into a false sense of confidence that they can do this,” she says. “They are not doing it because they want to, but because they have to. And they almost always end up completely overwhelmed and disillusioned.”

Macfarlane says the vast majority of those litigants are not ideologically driven or have an axe to grind. “They are simply people who can’t afford good legal representation,” she says.

The OPCAs Rooke takes aim at in his ruling, she adds, are “a very particular subset of people with mental health problems. Courts are a magnet for them because they can grandstand.” Still, she applauds the ruling for drawing attention to the issue of self-representation as a whole, and hopefully stimulating debate on access to justice and possible solutions to address the issue. “We could provide more resources to help people, loosen the rules on paralegals so they can provide support, and allow lawyers to unbundle legal services, but it’s clear that the current system needs to be improved.”

Free newsletter

The Canadian Legal Newswire is a FREE newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered on a regular basis, providing targeted news and information of interest to in-house counsel.